3d Cir. Model Jury Instr. (Civil) 6.1.6

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Last updated March 2026

requirement for Section 1981 claims . Moreover, such a requirement appears to conflict with the 68

understanding of at least some Justices. In CBOCS, Justices Thomas and Scalia, dissenting from 69

the Court’s holding that Section 1981 encompasses retaliation claims, objected (inter alia) that a 70

plaintiff “‘need not show that the [race] discrimination forming the basis of his complaints actually 71

occurred,’ “ and that as a result, “the Court ‘creates an entirely new cause of action for a secondary 72

rights holder, beyond the claim of the original rights holder …. ” CBOCS, 553 U.S. at 464 -65 73

(Thomas, J., joined by Scalia, J., dissenting) (quoting Jackson v. Birmingham Bd. of Ed., 544 U.S. 74

167, 194-95 (2005) (Thomas, J., joined by Rehnquist, C.J., & Scalia & Kennedy, JJ., dissenting)). 75

The CBOCS majority did not explicitly respond to this facet of the dissenters’ argument. 76

Oliva’s statement that a Section 1981 retaliation claim requires proof of an underlying 77

Section 1981 violation may also be in some degree of tension with a prior opinion by the Court of 78

Appeals. In Jones v. School District of Philadelphia , 198 F.3d 403, 414 -15 (3d Cir. 1999), the 79

Court of Appeals first held that the district court properly granted summary judgment on the 80

plaintiff’s race discrimination claims, and then held that plaintiff ’s retaliation claims (under 81

Section 1981, Title VII, and the Pennsylvania Human Relations Act) failed due to lack of 82

causation; had the Jones court believed that proof of an underlying violation of Section 1981 was 83

required for a Section 1981 retaliation claim, the court’s ruling on the discrimination claims would 84

have dictated a ruling for the defendant on the Section 1981 retaliation claim – yet the Court of 85

Appeals instead based its ruling (as to all three types of retaliation claims) solely on finding a lack 86

of evidence of causation. 87

Without attempting to resolve the issue, the Committee wishes to ensure that users of these 88

instructions are aware of the language in Oliva (also quoted in Castleberry)10 indicating that 89

Section 1981 retaliation claims require proof of an underlying violation. See also, e.g. , Ellis v. 90

Budget Maintenance, Inc., 25 F. Supp. 3d 749 (E.D. Pa. 2014) (holding that Oliva requires proof 91

of an underlying violation), appeal dismissed (Nov. 25, 2014). 92

The most common activities protected from retaliation under Section 1981 and Title VII 93

are: 1) opposing unlawful discrimination; 2) making a charge of employment discrimination; 3) 94

testifying, assisting or participating in any manner in an investigation, proceeding or hearing under 95

Section 1981. See the discussion of protected activity in the Comment to Instruction 5.1.7. See 96

also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (filing discrimination 97

complaint constitutes protected activity), overruled on other grounds by Burlington N. & S.F. Ry. 98

Co. v. White, 548 U.S. 53(2006); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 99

1997) (advocating equal treatment was protected activity); Aman v. Cort Furniture, 85 F.3d 1074, 100

1085 (3d Cir. 1989) (under Title VII ’s anti-retaliation provision “a plaintiff need not prove the 101

10 See supra note 93 for a discussion of Castleberry.